Jersey Unreported Judgments

Care order - reasons relating to adjournment of Minister's application for an interim care order.

[2017]JRC194

Royal Court

(Family)

13 November 2017

IN THE MATTER OF LUCY (INTERIM CARE ORDER)

AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

Advocate C. R. G. Davies for the Applicant.

Advocate N. S. H. Benest for the First Respondent.

Advocate M. J. Haines for the Second Respondent.

Advocate R. S. Tremoceiro for the Third Respondent.

judgment

the deputy bailiff:

1.        On 13^th October, 2017, the Court sat to consider the Minister's application for an interim care order with regard to Lucy (this is not her real name).  Lucy is the daughter of A (the mother/First Respondent and B (the father/Second Respondent.

2.        The Minister's application was for an interim care order pursuant to Article 30 of the Children (Jersey) Law 2002 ("the Law") and leave to make arrangements for Lucy to be placed in a therapeutic residential unit outside of the jurisdiction.  The Court adjourned the Minister's application.  These, in brief, were our reasons. 

3.        The father and the mother are separated but not yet divorced.  Both have parental responsibility for Lucy.  The father lives in another Channel Island.  Lucy lives with the mother and both are residing with the mother's parents ("the Grandparents").  Until relatively recently the father also lived at the same address. 

4.        The application proceeded on the basis of a preliminary threshold document filed by the Minister.  None of the parties disputed that threshold had been passed although the Court must, of course, satisfy itself of this before considering what, if any, order might then be made.  The preliminary threshold document made worrying reading and encompassed concerns relating to both physical and emotional harm.  The picture painted is of a child who has serious challenges and who is largely uncontrollable when enraged.  A picture is also painted of the inadequacy of her parents and maternal grandparents in controlling and providing appropriate containment for her in those circumstances. 

5.        The preliminary threshold document cites inappropriate use of restraining techniques by the father and maternal grandfather when the child's behaviour deteriorates.  There is an allegation that in 2017 the mother, father and maternal grandfather took Lucy to Accident and Emergency and when she refused to leave the car she was pulled out by her wrists and her arms were then pulled up behind her back to restrain her putting her at risk of both physical and emotional harm.  The maternal grandfather was the restraining individual, assisted the father whilst the mother stood on and apparently did nothing to intervene in this treatment of Lucy. 

6.        In May of this year Lucy complained that her maternal grandfather and mother had slapped her on the wrist and on the face.  The mother admitted to slapping Lucy on an occasion in an effort to "calm her down".  In June 2017 Lucy stated that her mother had punched her and hit her in the face causing a three inch bruise to the top of her arm and two fingertip bruises above and below her elbow.  There is an allegation that she is at risk of physical harm because when her behaviour deteriorates she assaults and bites her mother and her mother lashes out at her. 

7.        There is further an allegation that in May 2017 the maternal grandfather contacted Child Adolescent Mental Health Service by email stating that the mother "nearly had a nervous breakdown this morning" and that "last night was the first night in weeks when the entire household had a night's sleep, following Lucy being dosed with Phenergen".  Phenergen is an over the counter medication used to treat allergy symptoms and has a sedative effect. 

8.        The police have been called a number of times to the grandparents' home when Lucy's behaviour deteriorates.  It is alleged that she is at risk of emotional harm because both parents involved her in the dispute over the acrimonious breakdown of their marriage. 

9.        Lastly, it is alleged that she is at risk of harm due to her non-attendance at school.  The child's school attendance since September 2017 was, it is alleged, 65%. 

10.      At the beginning of the hearing we were shown two pieces of video evidence.  The first was a video taken by the maternal grandfather of Lucy, having soiled herself, throwing a tantrum, pushing furniture over and shouting and swearing at her mother.  The adults in the room seemed incapable of dealing with the matter.  It is clear that we were looking at an extremely unhappy little girl who did not feel in any way supported by the adults around her. 

11.      We saw the CCTV from the hospital when Lucy was taken by her parents and maternal grandfather to A&E.  We saw the somewhat unedifying picture of Lucy being dragged from the back of the car and held with her arms up behind her back by the maternal grandfather.  Although the mother said that she did not wish this to happen she did not appear in the CCTV to do anything about it although she tells us, which we could not of course hear, that she was asking her father to stop.

12.      We heard evidence from Mrs Pilbeam who is the team manager at Children's Services for the team dealing with Lucy.  She has supervised the social worker's involvement and has been involved in Lucy's matter from the outset.  She prepared a statement for us which she produced into evidence which entirely supports the allegations contained in the preliminary threshold document.  She was most concerned at Lucy's situation and told us that in her view the likelihood of harm was very, very high.  Sometimes Lucy's allegations of injury cannot be established because she refuses to be examined by a doctor.  Some of the allegations, such as punching in the chest, could not therefore be properly investigated.  We also heard that Lucy was sometimes incontinent both as to urine and faeces. 

13.      Mrs Pilbeam also gave us other information about Lucy.  Lucy suffers from a list of fears which prey upon her.  She resists sleep and indeed on occasion when she went to Robin Ward in the General Hospital staff there noted that she would leap out of bed as soon as she felt her eyes closing to resist going to sleep.  As a result of this it is hardly surprising that she is extremely tired.  In Mrs Pilbeam's view the mother was not able to deal with Lucy appropriately.  Lucy occasionally resorts to highly resistant and destructive behaviour where she becomes distraught and screams and swears.  Her mother resorts to threats, bribery and restraint to control Lucy's behaviour and whilst Mrs Pilbeam accepted that these were sincere efforts at control by the mother they were simply wrong.  Lucy's behaviour becomes infantile in front of the mother and Lucy does not like to have her mother out of her sight.  She insists on sleeping in her mother's bed. 

14.      Mrs Pilbeam was insistent that something needed to be done at this stage, as Lucy's development is being injured.  Mrs Pilbeam was confident that there should be a separation between the mother and the child, and the child should have a therapeutic placement where her many difficulties could be addressed.  It is anticipated that there be a period of separation between Lucy and her mother to address Lucy's problems and to enable the mother to address her parenting style.  There were no therapeutic placements in Jersey and accordingly the Minister had sought and found a therapeutic placement in the United Kingdom.  Mrs Pilbeam entered the Minister's care plan into evidence and it was proposed that Lucy be placed in a facility in the UK with an attached school where she could continue her studies.  The facility only had one other child in it and there would be a high measure of attention and treatment for Lucy. 

15.      Mrs Pilbeam was cross-examined at some length on behalf of the mother and she accepted that there were some improvements to be seen in Lucy's behaviour.  She suggested that this might be disguised compliance and the family are no longer reporting Lucy's attitude although her attendance was improving and she accepted that it would be disruptive for Lucy to leave the school.  Contact between Lucy and the mother and father should the placement be made was yet to be worked out although contact after a few weeks on a fortnightly basis was what the Children's Service currently had in mind.  Mrs Pilbeam was asked under cross-examination what the risk was of allowing the mother and Lucy to move into the new accommodation together.  She answered she was worried about violence towards Lucy - but accepted there hadn't been any since September. 

16.      The Court also heard from Dr Laura Posner who is the clinical psychologist at the Children Adolescent Mental Health Service who also introduced her report into evidence.  She expressed considerable concern about Lucy indicating that sometimes she functions as a normal 12 year old but at other times she regresses to the state of a very young child.  She too was concerned about the injuries and she points out that Lucy's grandfather repeats the view often that Lucy has psychiatric or physiological problems which affect her behaviour.  Dr Posner believes that the high emotion of the last year has harmed Lucy.  The little girl either has a genuine fear of going to bed or may simply be exercising control over her mother by insisting on sleeping in her mother's bed.  On being cross-examined for the mother, Dr Posner said that she has noted improvements.  The mother has addressed her own well-being and she and Lucy have enjoyed spending time together when the mother has been left in sole control.  There is no question that the mother loves Lucy.  The little girl seems to have benefitted from the father moving out of the home and the atmosphere has become calmer.  Unfortunately Lucy now has developed a heightened fear of the Court process as she has been told that if she does not behave properly she will be "placed into care".  Lucy has spoken with warmth about her friends at school both existing (moving with her from her old school) and new.  Of primary concern is Lucy's emotional health.  In cross-examination on behalf of Lucy, a letter from Ms C, the Education Welfare Officer at School A, of 11^th October was put to Dr Posner.  This letter reflects that Lucy's attendance has gone up to 75% and there is no concern in relation to her behaviour and her engagement in the learning process.  Notwithstanding this improvement, Dr Posner remains concerned about the dynamics between Lucy and her mother.  Dr Posner indicated that Lucy was very controlling and accepted that the dynamic between her and her grandfather could be part of the problem.  She accepted that Lucy was doing better with soiling and there had been only one incident at school since September.

17.      Two witnesses, Witness 1 and Witness 2 gave evidence on behalf of the mother.  Witness 1 indicated that she and her husband had been friends of the family since their move to Jersey in Easter of 2015.  The family had been guests at the Witness 1's household, coming round for BBQ's or buffets every few weeks.  Witness 1 noticed that Lucy could be a little moody but that since the summer of 2017 whenever Lucy had visited she had displayed a remarkably happier demeanour and joined in the family fun and was much more cordial, confident and jolly.  Witness 1 described it as heartening to witness.  In cross-examination Witness 1 confirmed that she had not been to Lucy's home nor had Lucy been with her overnight and that she had not seen any examples of restraint or bruises or incontinence or anything of the sort. 

18.      Witness 2 had known the mother and Lucy since they moved to Jersey.  Lucy was in the same class as Witness 2's daughter and they became friends.  Lucy had been to play with Witness 2's daughter at their home on a number of occasions and has always been happy and well behaved.  Since starting at School A, Witness 2 had witnessed Lucy coming out of school many times and the little girl always appeared to be happy and content and pleased to see the mother.  Again in cross-examination Witness 2 confirmed that Lucy had not stayed overnight and she had not seen such things as restraint or bruises and whilst she had not seen any problems with incontinence the mother had told her that there were such difficulties.  She had also talked to the mother about Lucy's fears. 

19.      The Court heard from Ms C who since 2016 has been the Education Welfare Officer at School A.  Prior to that she was a social worker with the Children's Service.  She placed in evidence her statement.  She confirmed to us that when she had first met Lucy the little girls' attendance was at 62% and the problem appeared to be that Lucy stayed up very late and it is sometimes a struggle to get her into school.  She gave evidence about the time when Lucy started at School A which coincided with an incident at the school where the father had turned up and there was an altercation between him and the mother.  This took place in front of Lucy who had become very distressed.  Lucy is a bright girl and she does make friends although she seems to gravitate towards those with complex needs.  Ms C described an incident last week which came about because Lucy had been really worried about the prospect of going into care.  She had indicated that "Mummy had said that if I didn't get up I might go into care".  In cross-examination on the part of the Mother, Ms C confirmed that Lucy had been at school every day for the last three weeks. 

20.      We heard from the mother.  She confirmed that Lucy had six friends from School B and she has made four new friends although she has not socialised with them as yet outside of school.  She does have contact with her father which is normally over FaceTime.  Lucy has, since the father moved out, vastly improved in her behaviour.  She has calmed down, she sleeps, she takes the prescribed medication (Movocol) to assist with her continence issues and she is no longer violent towards the mother nor does she succumb to rages in the same way that she did.  Nothing has happened in recent times which in the mother's view should have been reported.  She sees Dr Posner weekly and Lucy likes her and has reacted well to Dr Posner's use of role play.  The mother told us that the police advised the family that if the child might be in danger of hurting herself they could hold her hands back and restrain her.  She accepted that she had slapped Lucy once around the face and that this behaviour was wrong.  She had put her name down for two courses to improve her parenting skills.  She told us that from the following Monday onwards she is able to occupy a two bedroomed apartment until at least next spring.  It is rented accommodation after which she may have available to her a three bedroomed house.  The mother vehemently denied that she had ever threatened Lucy with going into care although indicated that the father had done so.  She accepted that she gave her daughter Phenergan on two separate nights but now that she realised it was inappropriate she would not do it again.  Lucy has improved a great deal and is much closer to being normal and happy and getting back her confidence.  She has become proud of her achievements.  The mother earnestly wanted a new beginning and expressed the concern that a residential placement would "finish her".  The mother was cross-examined concerning the injuries to Lucy and their life together including staying up late and concerns that Lucy had said that she would hurt others and herself. 

21.      We had the benefit of evidence from the guardian, Mrs Elsa Fernandes.  She had only been appointed very recently but had met with Lucy as well as talking to a number of professionals involved and reading the papers.  Lucy knew the words "care order" and the possibility that she could go to the United Kingdom.  Lucy was very firm that she did not want to be separated from her mother or placed into care.  Mrs Fernandes thought that perhaps there might be an alternative placement available where the mother and Lucy could go together.  Mrs Fernandes could not see how the interaction between the mother and Lucy could be monitored or altered if they were not together.  Mrs Fernandes is very concerned about Lucy and the incidents that had been reported but she is very clear that there should be an opportunity to monitor both Lucy and the mother together.  If the Minister's care plan was granted, then she would have concerns about how any such assessment would take place given that there could be a separation of between six months or even a year.  Although she could not comment on the extent of any improvement in Lucy's behaviour and otherwise in recent months, she did say there was some evidence for some improvement and whilst she could see whilst the Children's Service may have concerns about the mother and Lucy moving to new accommodation alone, she makes the observation that Lucy has been in a household with bruises and presenting as she has since May of this year with no application being made.  Lucy does not like living at her grandparents' house and quite clearly the move to new accommodation will be a significant change.  The guardian was also concerned that not enough had been done to prepare Lucy for a potential move to the United Kingdom if it occurs.  From her point of view we were dealing with an extremely anxious child who was very close to her mother and we should listen to what the little girl says.  In cross-examination the guardian accepted that it may well be the case that Lucy is minimising how bad things were for the purposes of today's application and there is a good chance that the mother is doing so as well.  She felt, however, that there was a value in letting Lucy and the mother move into new accommodation and at least Lucy would then feel that she had been heard by the professionals in this case.  As far as the guardian was aware there had been no injuries noted in the last few weeks.  She accepted that there was risk in any decision and was satisfied in her own mind that the threshold had been made out. 

22.      We also heard from Lucy herself.  She visited us for 10 minutes in Chambers in the company of the guardian and her legal adviser.  She was clearly a bright and intelligent child but, quite understandably, was nervous and we cannot escape the view that much of what she said was scripted a little from things that she had heard other people say and which were designed to persuade us to follow her wishes.  That notwithstanding we are equally clear that Lucy does not wish to be separated from her mother and believes that things have improved for her and are continuing to improve.  She speaks of her friends and her school.

23.      The Minister's position is that this is a girl at very considerable risk who has manifested some very disturbing behaviour and some injury.  She needs to be separated from the environment where she currently lives and the only appropriate place is a therapeutic placement in the United Kingdom. 

24.      This move is supported by the father who, of course, has parental responsibility although he says that he would hope that Lucy could be returned into the care of her mother at the end of the therapeutic placement. 

25.      The mother does not wish to be separated from Lucy and says that the worst of the worrying behaviour occurred during the time of her acrimonious split between herself and the father before he left the home and moved away.  Lucy exhibited the worst of her behaviour and indeed suffered the worst of her symptoms during this period.  Things had markedly improved and were continuing to improve both at school and at home now that the father was no longer living there and that she felt that this improvement would continue when she and Lucy moved into new private rented accommodation.  She felt that she and Lucy could go back to being a normal family unit and that it would be hugely destructive to take Lucy away. 

26.      In our view the evidence in this case paints a very complex picture.  We do not accept at face value the evidence that the mother has given us.  We think that she likely minimises incidents and behaviour and presents an over positive picture of the current state of affairs as a result of her quite understandable desire to keep Lucy with her.  We think it likely that she does talk to Lucy about going into care.  We think it is undoubtedly the case that there are highly worrying features of Lucy's experience and behaviour over the last six months or so but there are definite signs of improvement and the worst period seemed to be co-extensive with the period that the father and mother were still together and going through the acrimony of a painful separation. 

27.      It is entirely clear to us, however, that the threshold has been passed in this case and the question that we must address is what the correct disposal would be for this matter.  We of course look entirely to Lucy's interests and we apply the welfare checklist as we are required to do. 

28.      It is no small thing to remove a child from her parent and this 12 year old girl is clearly very worried indeed at that prospect.  Naturally notwithstanding Lucy's wishes we would do whatever we felt to be in her best interest.

29.      We do not, however, think that enough weight has been given to the fact that many if not all of Lucy's most serious problems occurred during the time of the active acrimony between the mother and the father.  We think that there is a possibility now of a period of calm and that Lucy's general welfare, health and emotional stability can improve with the help of the professionals around this family.  It may be, as it was suggested to us in submissions, putting off the evil day but we think that Lucy and the mother should have the opportunity in new accommodation to build upon the recent improvements of which we have heard.  Advocate Benest submitted that there was no trigger event at this time to justify suddenly removing this child from her mother and from Jersey and we agree.  If after a period (which should be determined on the basis of professional advice) the Minister still thinks that the situation is such that an off island placement is indicated then it would be in the light of the knowledge of how Lucy and her mother function together and the dynamic between them and there would also be more time to prepare the way. 

30.      As we have said we find that the threshold has been passed and we would, had we been asked, have made an interim care order.  We do not feel, however, that we can approve the Minister's care plan at the present time and counsel for the Minister indicated in those circumstances that we should not make an interim care order. 

31.      Accordingly we adjourned the application for the interim care order. 

Authorities

Children (Jersey) Law 2002.